In a series of events that left some social media observers confused, the Department of Justice and the General Counsel for the House of Representatives each separately announced on Tuesday evening that they would not represent House Republican Mo Brooks in a civil suit brought by House Democrat Eric Swalwell. This is bad news for Brooks – particularly the DOJ part – and bad news for a number of other political figures who played a role in the January 6th Capitol attack.
In the civil suit, Swalwell alleges that Brooks’ January 6th speech to the insurrectionists made him culpable in the Capitol attack that followed. The DOJ announced on Tuesday that it will not represent Brooks because he was not acting within the scope of his Congressman job when he gave the speech. To be clear, the DOJ did not side against Brooks in the civil suit. Nor does this civil suit directly relate to any criminal case that the DOJ could end up bringing against any insurrectionist politicians. All this means – for now – is that Brooks is on his own when it comes to fending off the Swalwell suit, which means that Swalwell will likely be able to gain access to evidence and testimony more quickly than if the DOJ were representing Brooks.
But even though this DOJ announcement was narrowly defined, it nonetheless establishes the precedent that the politicians who encouraged the insurrectionists were not acting as members of Congress that day. This opens to door for additional civil cases against the politicians who incited the insurrectionists, now that it’s clear they won’t have the DOJ protecting them. That ostensibly includes Donald Trump.
It’s important to keep in mind the DOJ’s decision-making as to whether it’s obligated to represent any given politician in any civil suit is an entirely different conversation from the DOJ’s decision-making about what criminal charges to bring against any given politician. This vast and crucial has been widely misunderstood when it’s come to other recent DOJ decisions regarding politicians and civil cases.
This ruling still doesn’t tell us for sure whether the DOJ will end up bring criminal cases against Mo Brooks, Donald Trump, or any other politicians who incited the January 6th Capitol attack. But since the DOJ doesn’t think it’s legally obligated to defend them in any civil suits, this saves the DOJ from being stuck in the awkward position of having to defend the insurrectionist politicians in civil suits while trying to determine whether to bring insurrection-related criminal charges against them.
In addition, the determination that Brooks wasn’t acting in his job capacity when he spoke to the insurrectionists may also be a big deal. The most obvious defense strategy that the likes of Brooks and Trump would use against charges of inciting the insurrection would be that they merely thought they were doing their jobs by addressing the public. But with that defense out the window, it would seemingly increase the odds of the DOJ getting a conviction against them – which is the determining factor that the DOJ ultimately uses in deciding whether to bring any given criminal case.
Bill Palmer is the publisher of the political news outlet Palmer Report